Hi, everyone. Judge Andrew Napolitano here for judging freedom. Today is Monday, March 4, 2024. Colonel Douglas McGregor scheduled to be on with us now. We’re trying to communicate with him. Occasionally, communications break down, no matter how talented the guest is or how determined our team is, and we’ll find them and connect with them. I thought that while we’re on air, with so many of you lining up, I would chat for a few minutes with you about the breaking news of today, which is, of course, a unanimous decision by the Supreme Court of the United States on whether or not Donald Trump’s name can appear on ballots in primary elections and should he get the nomination in the general election for president of the United States.

Those of us that monitor these things for a living were hoping for a unanimous Supreme Court decision, and that’s exactly what happened. If you haven’t followed the news in the past hour and 20 minutes, it is that the Supreme Court of the United States ruled unanimously, nine to nothing, that Donald Trump’s name can appear on the ballots. What was the dispute here? Well, after the Civil War, the states ratified what are known as the Civil War amendments, the 13th Amendment, which prohibited slavery, the 14th Amendment, which required the states to engage in equal protection to enforce rights equally, and the 15th Amendment, which prohibited discrimination on the basis of race.

The 14th Amendment has a clause in it which was written to prevent those who participated in the war on the side of the south in what is sometimes called the Civil War and sometimes called the war between the states from ever running for federal office. That’s known as the disqualification clause. Whoever aided or abetted an insurrection, the reference in the amendment is to the Civil War or the war between the states that insurrection, does that apply to all insurrections? Does it apply to words that Donald Trump used on the morning of January 6? Does it apply to any hesitation he may have had while in the White House to call out troops to stop what was happening in the Capitol? Well, in the state of Colorado, a judge held a trial, and Trump participated in the trial, not personally, but through his lawyers.

I don’t think he or his lawyers took it seriously, but they did participate. And this judge ruled that January 6 was an insurrection, but that the 14th amendment did not apply to the presidency because it didn’t name the presidency as being excluded from running for office. Remember, the clause in question says, whoever aided or abetted an insurrection is excluded from becoming an officer of the United States. Is the president an officer of the United States? He sure is.

But this judge in Colorado ruled that because the word president or the word presidency didn’t appear in the 14th Amendment. It would not apply to Donald Trump. Supreme Court of Colorado reversed her and said, of course it applies to the presidency, and of course it applies to the president. And you already ruled, your honor, that he aided and abetted an insurrection. So we’re going to direct the secretary of state of Colorado to keep his name off the ballot.

The same case was also filed in Minnesota. And in Minnesota, the Supreme Court said, well, the 14th amendment doesn’t say you can’t run for office. It only says you can’t serve. And he’s not running for president. He’s running for the republican nomination for president, so his name can stay on the ballot. So here you have the court of last resort in two states, two liberal states, Colorado and Minnesota, coming to opposite interpretations of what one clause in the Constitution means.

Question, can the Constitution mean different things in different states? Answer, no. The Supreme Court, from the very beginning of the country, declared that the Constitution must mean the same thing in all parts of the country. The states can interpret their state laws and their state constitutions however they see fit. That’s part of the beauty of what remains of our federalist system. The feds have taken so much authority away from the states by bribing them.

Another story for another time. But a clause in the constitution needs to mean the same thing everywhere. Otherwise, it’s not a constitution. So can a state keep someone off the ballot because he’s been accused, not proven guilty, but accused of participating in an insurrection? Answer for a state office. It’s up to the states, but for a federal office. And there’s only one federal office for which we vote nationwide.

President. We don’t vote for president and vice president separately. So, effectively, you’re just voting for the president. For the federal office, the mechanism for keeping anyone off the ballot is going to have to be decided by Congress. So there are two types of clauses in the constitution. One is called self executing, and the other requires legislation to execute. Example, the first amendment says, congress shall make no law abridging the freedom of speech.

It’s pretty clear what that means. It’s self executing. The states don’t need any guidance from Congress as to what that means. But the clause of the 14th amendment, which says anyone who once took an oath of office to support the Constitution and then aided or abetted an insurrection against it, shall not serve as an officer of the United States. The Supreme Court today said that is not self executing, meaning Congress has to decide what that means and how it should apply.

So Congress will have to come up with legislation saying either an allegation is sufficient, or you got to be convicted of a time before your name can be barred from the ballot. There was a time when election officials could say things like, oh, we know, Jimmy. We all saw him in a confederate uniform ten years ago. He fought for the south, and now he wants to run for Congress.

He’s excluded. And that was an acceptable mechanism for excluding somebody. But as the civil war or war between the states generation passed away, and as the constitutional language didn’t change, and as our perception of due process, what the government needs to go through before it can take your life, liberty, or property became more refined, it became apparent to those of us that study and lecture and write about these things that before somebody loses a liberty under the Constitution, it can’t be done by the decision of a bureaucrat.

It would have to be with due process, meaning there’d have to be a charge, an allegation that somebody participated in or aided and abetted an insurrection. And then somebody, presumably the government, would have to prove that beyond a reasonable doubt and to a moral certainty. That’s a very high standard. And then, and only then, can that person’s name be taken off the ballot. That would be one way for the Congress to resolve this.

The other way for the Congress to resolve it is to do nothing and just let the Republicans and Democrats decide who their nominees are going to be, and then the people will decide who they want to be president of the United States. Congress has the liberty to do that. Some of us thought that the court should have established the mechanism for determining who can run and who can’t, because it is the court’s job to say what the Constitution means.

But the court decided here that it would kick the can down the road a bit and let Congress decide, knowing that in an election, in an election year, there’s no way Congress, which is deeply, deeply divided, is going to take up this hot potato. So the good news is the people will decide who gets to be their nominee for the republican side, for the democratic side, and who gets elected president of the United States.

The bad news is this was a long, tortuous, expensive piece of constitutional litigation which went on in about twelve or 13 states. .

See more of Judge Napolitano – Judging Freedom on their Public Channel and the MPN Judge Napolitano – Judging Freedom channel.